Shaw v. Ferguson

437 So. 2d 319
CourtLouisiana Court of Appeal
DecidedAugust 15, 1983
Docket15414-CA
StatusPublished
Cited by17 cases

This text of 437 So. 2d 319 (Shaw v. Ferguson) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shaw v. Ferguson, 437 So. 2d 319 (La. Ct. App. 1983).

Opinion

437 So.2d 319 (1983)

Leola Ferguson SHAW, Plaintiff-Appellant,
v.
Henry T. FERGUSON, Defendant-Appellee.

No. 15414-CA.

Court of Appeal of Louisiana, Second Circuit.

August 15, 1983.

*320 Glenn F. Armstrong, Bossier City, for plaintiff-appellant.

Thomas & Prestridge by Roger M. Prestridge, Bossier City, for defendant-appellee.

Before MARVIN, FRED W. JONES and SEXTON, JJ.

SEXTON, Judge.

The plaintiff herein, Leola Ferguson Shaw, has appealed a Bossier Parish judgment dismissing her demands on an exception of prescription. We reverse and remand.

The plaintiff sued her former husband, defendant Henry T. Ferguson, on October 7, 1977, by ordinary process seeking recognition of an Alabama judgment rendered on June 30, 1966. This was a judgment of *321 divorce which also ordered Mr. Ferguson to pay the sum of $125.00 per month for child support for three children of the marriage. Additionally, the judgment ratified and effected a community property settlement by ordering Mr. Ferguson to sign the necessary instruments to convey title to Mrs. Shaw to certain real estate located in and near Ruston, Louisiana. Therefore, in the petition at issue, plaintiff sought recognition of that 1966 judgment under the authority of LSA-C.C.P. Art. 2541,[1] and also sought accumulation of the child support arrearages.

Defendant filed an exception of prescription asserting that enforcement of the agreement entered into as a part of the Alabama divorce judgment was prescribed by the prescription of 10 years. The trial court held that prescription issues are governed by the law of the forum and found that the action to enforce the judgment at issue was a personal one barred by the 10 year prescription of LSA-C.C. 3544 which states that in general, all personal actions are prescribed by 10 years in the absence of a contrary provision.

It is well settled that a foreign judgment of separation or divorce which incorporates a division of community property is final and res judicata in all respects, and is entitled to full faith and credit unless the foreign court was without jurisdiction to render such a judgment. Art. 4, § 1, United States Constitution; Sandifer v. Sandifer, 389 So.2d 767 (La.App. 3d Cir. 1980). However, the Full Faith and Credit Clause of the United States Constitution is not violated where the enforcement of a foreign judgment is barred by the applicable prescriptive statutes. Lawyers Title Services, Inc. v. Boyle, 308 So.2d 479 (La. App. 4th Cir.1975). There is no question raised here concerning the jurisdiction of the Alabama court to render the divorce judgment at issue. Thus, that foreign divorce judgment must be given effect here unless its enforcement is barred by the applicable prescriptive limits.

The first issue to be resolved is which state's law governs the prescriptability of Ms. Shaw's right.

Central to this inquiry is LSA-C.C. Art. 3532:

Art. 3532. Foreign contracts and judgments; borrowing statute.

The prescription provided by the laws of this state applies to an obligation arising under the laws of another jurisdiction which is sought to be enforced in this state.
When a contract or obligation has been entered into between persons who reside out of this state, which is to be paid or performed out of this state, and such contract or obligation is barred by prescription, or the statute of limitations, of the place where it is to be paid or performed, it shall be considered and held to be barred by prescription in this state, upon the debtor who is thus discharged coming into this state.

This article states quite plainly, then, that the prescription to be applied to this foreign obligation is that provided by the laws of this state. In other words, "[P]rescription is a procedural matter and it is governed by the laws of the forum." Davis v. Colvin, 410 So.2d 1211, 1212 (La. App. 3d Cir.1982). Therefore, under the literal terms of LSA-C.C. Art. 3532, if the 1966 Alabama judgment is not prescribed by the laws of this state, it is still enforceable[2]—unless barred by the second paragraph of LSA-C.C. Art. 3532.

*322 This paragraph proclaims that if the obligation is barred by prescription of the place of performance, it is barred in this state.

It therefore becomes our initial task to determine if the obligations of this judgment are barred in Alabama, where rendered. We may take judicial notice of the statutes of the State of Alabama and may inform ourselves of such law in any fashion we deem proper. LSA-C.C.P. Art. 1391. This article allows us to inquire on our own initiative into the law of another state although we are not obligated to do so. Gathright v. Smith, 368 So.2d 679 (La.1978).

Alabama judgments are not barred until the lapse of 20 years from rendition, although specific procedures must be complied with to execute judgments over 10 years old. Ala.Code of Civil Practice, Art. 8 §§ 6-9-190, 6-9-191, 6-9-192 (1975). Therefore, since the obligation is not barred in Alabama, Louisiana prescriptive law under LSA-C.C. Art. 3532 governs.

Because of our reliance on Article 3532, we feel we would be remiss if we did not parenthetically note Jagers v. Royal Indemnity Co., 276 So.2d 309 (La.1973), in which, in a tort case, our Supreme Court rejected the traditional rule of lex loci delicti and adopted the modern interest analysis for resolving conflicts of law problems. Jagers was, of course, followed by this Circuit in the tort case of Sutton v. Langley, 330 So.2d 321 (La.App. 2d Cir.1976).

Basically stated, a state is said to have an "interest" in the application of its law, if the policy underlying its law is advanced and reified by the application of that law to the facts of this case. Where only one state has an "interest" in the application of its law to the facts of the case, a "false conflict" exists, and the laws of that single interested state are applied. Where several states have an "interest" in the application of their law to the facts of the case, a "true conflict" exists, and the forum court is to apply the law of the state which is most interested—i.e., that state, the substantive legal policies of which, are most advanced by the application of its law to the facts.

We find it necessary to take note of Jagers because of Wickham v. Prudential Ins. Co. of America, 366 So.2d 951 (La.App. 1st Cir.1978), in which a divided panel of the First Circuit in applying a modern interest analysis in a contracts case, found Louisiana to have a superior interest to the state where the contract was confected and applied the law of this state. The action of the majority in Wickham was contrary to a specific civil code article, LSA-C.C. Art. 10.

It is our view that Jagers mandates the application of the modern interest analysis in those circumstances where the choice of law is not specifically governed by statute. Jagers dealt with a tort, and there is no civil code article or revised statute which stipulates what law is to be applied in the case of a tort. Thus, the holding in Jagers, when properly confined to its underlying facts, is that the modern interest analysis will be applied to choose the governing law in a tort suit. A broader and rationally justifiable interpretation of Jagers is that it mandates the application of a modern interest analysis in the absence of a statute which stipulates the applicable law. However, we do not believe that Jagers

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Bluebook (online)
437 So. 2d 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaw-v-ferguson-lactapp-1983.